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Saturday, June 14, 2014

Jonathan Salvador fallout: Two cases bookend range of options

A pair of notable cases related to the Jonathan Salvador DPS-Houston crime-lab fallout demonstrate the range of options for how thousands of affected drug cases might go. Salvador, readers will recall, was caught and fired for engaging in "drylabbing," or recording results without having performed the underlying testing.

On June 4th, the Texas Court of Criminal Appeals (CCA) delivered a brief, 5-page opinion in Ex Parte Coty denying habeas corpus relief after re-testing of the evidence confirmed it was cocaine. Important case. Former DPS crime lab worker Jonathan Salvador worked on just fewer than 5,000 cases while he worked there. So, as of the Coty case, and contrary to the court's prior ruling, all those cases aren't automatically jeopardized. If evidence is available for retesting and the results confirm Salvador's findings, or if prosecutors possess other material evidence of guilt, convictions may be sustained by the CCA. At their weekly case summary, the prosecutors' association was clearly pleased:

With this decision, the State now clearly has hope when confronted with a
case in which the conduct of a bad scientist has threatened to ruin a
conviction. Back in January in this case, the court gave us a new set of
rules to follow in “bad scientist” cases that backed away from a
“defendant always wins” approach. Now with this decision and with the
new rules put into practice, the State has a clear roadmap to save an
otherwise valid conviction. Thank goodness. The prospect of the finding
of an automatic due process violation would have been devastating. The
State is still going to have to do some work, as evidenced by this case,
but at least now there is some hope.

Ah, hope springs eternal. Meanwhile, Fox-26 in Houston this week (June 12) reported on a Conroe man soon to be freed because of the Jonathan Salvador mess. According to that short piece by Isiah Carey:

It could be a matter of days before a Conroe man is free after being convicted on what prosecutors call shoddy crime lab work.

This comes two years after a Department of Public Safety crime lab employee was fired for falsifying drug test results.

Defense
attorney Rick Brass says his client Diedrik Cavil was sentenced to 45
years on the evidence prepared by the now former worker.

Brass says there are at least 5000 cases affected in the two year old investigation. ...

Montgomery
County prosecutors say they have about two hundred cases affected but
they don't believe all of them will be dismissed like the Cavil case. [Ed note: See the CCA's May 7 opinion in that case.]

So, some convictions sustained from the Salvador debacle, some dismissed, what's the difference? What's happening here?

Partly, it's that drug evidence in Coty's case was still available in an evidence locker somewhere for re-testing. The state went through that process and the results confirmed Salvador's original findings. But that's not always the situation. The Texas Forensic Science Commission (FSC) estimated that evidence has been destroyed and is thus unavailable for retesting in a quarter to half of all cases, or approximately 1,250 to 2,500.

So you've got three categories of cases: Those where evidence exists and retesting confirmed Salvador's findings, those where evidence has been destroyed or is unavailable for retesting, and those where Salvador actually engaged in misconduct. (There's also a fourth group in some counties where no one has bothered to check or even notify the defendant about what happened and retesting may or more-likely may not occur.)

If all the defendants were notified and provided access to habeas counsel, one would expect 1,200 to 2,500 successful habeas claims, at a minimum, where evidence was destroyed, plus however many cases of actual misconduct are discovered. In reality, though, most defendants eligible for relief may not know about Mr. Salvador or, if they do, be able to afford a lawyer to pursue the case. They may or may not, for a variety of reasons, file pro se (on their own, without a lawyer) from their prison cell, much less while they're on probation or parole. In a few counties like Galveston, Montgomery, and Harris, defendants may be notified and, if eligible, promptly appointed counsel. But in other jurisdictions it's been much more hit and miss.

This is why Mary Ann Wiley, the new general counsel at the governor's office (congrats MAW, btw!), a few weeks ago suggested creating a public defender office for forensic writs. The Salvador episode should be a wake up call. The example offers the strongest possible argument in favor of such a post: The habeas corpus process isn't designed to carry such weight, especially if it's all done haphazardly via often imprisoned, pro se inmates. With many more Salvador-fallout cases likely to soon be filed (now that the case law is clear) and hair-and-fiber cases waiting in the wings, the Lege would do well to create a process in 2015 for handling this and similar situations. This won't be the last.

UPDATE: Just as a reminder, here's the distribution of Salvador's ~5,000 cases scattered across 36 Texas counties:

12 comments:

Anonymous
said...

"...With this decision, the State now clearly has hope when confronted with a case in which the conduct of a bad scientist has threatened to ruin a conviction..."Let's just expand that to "Bad Snitch", "Bad Cop", "Bad Witness for the prosecution", "Bad Judge", and "Bad Co-Prosecutor".

The message sent is "use as much tainted evidence as you want in order to win a conviction because even if you're caught, the State will get a second (and probably third, fourth, fifth) bite at the apple."

Factually, Salvador's actions were illegal. And he should be prosecuted.

Only the threat of prosecution will stop these types of occurrences from "Bad Actors".

And only if the prosecution is penalized (via overturned convictions) will these prosecutions go forward.

I have to agree. this is a criminal joke. sorry in every case where there is no evidence left those individuals should automatically be released. Sorry no evidence for a real fair trial. they go home. As for the others how do we know he didn't fuck with the evidence and that's why it can now pass?

any good lawyer will bring that up in any new hearing. sorry but the burden of proof is in the state. the guy has been caught fucking with at least 5,000 cases worth of evidence. we don't know what he did.

This all seems like a clear 14th Amendment violation: if some cases are overturned and judgements vacated while others stand, that seems like a clear denial of equal protection. Sad, but even sadder is how typical this all is for the failed kabuki dance we call the War on Drugs. Maybe someday there will be reparations paid to drug war veterans and POWs.

Grits, (if I may?). Folks, we just witnessed the CCA rigging the system in real time, all thanks to this GFB posting. While we wait for Updates and with the comments above having said it all, the following is just crap.

Now that you know what the differences are between: having a broken system, & having a rigged system looks like, what in the hell are you going to do about it?

That's right, not a gotdamn thang and you know it, (is meant to entice you to prove me wrong). Historically, the only mofos that are shown to give a rat's-ass about being caught up in a crooked criminal justice system, are those that have been victimized by one or just happen to be related to a victim of the system. Sadly the guilty will get away due to this & that.

This knowingly & willingly act of 'Rigging' will simply go down as another chapter in the - "WTF are they thinking in Texas?" saga, as the taxpayers continue to pick up the tabs re: both the front end in-your-face corruption and the cherry picked back ended got-caught settlements to 'go-away' and 'hush'.

With only the usual suspects titles having been changed (from bad cop to bad tech) it should be noted often, that the crimes are still crimes, which is why this is all 100% Bullshit, when you consider that - criminals are being utilized to convict criminals (Guilty or Not). I predict, this will bite the taxpayers in the buts due to all of the future claims that lead to wrongful conviction payouts. Along with a rash of Fake dope deals. Thanks.

I leave you with this -"On June 4th, the Texas Court of Criminal Appeals (CCA) delivered a brief, 5-page opinion in Ex Parte Coty denying habeas corpus relief after re-testing of the evidence confirmed it was cocaine." Now, all the bad-tech needs is a good buddy willing to drop a lil coke here & there when everyone's at lunch.

What about getting the full list of cases via public info request, and then organizing a volunteer effort to send letters to the effected inmates? There is no reason why they can't all be notified is there?

Grits, I was under the impression (from previous GFB postings) that the IPOT or IPTX had ditched the Application Requirements and was in the process of representing them. My bad.

As to the commenter suggesting that the public at large become proactive and volunteer on behalf of others in an effort to notify the potential VOTS. Good for you and btw, there is no good reason not to put your name on positive solutions.

Due to the State not doing the right thing, along with an absence of any projects (dealing with - OPEN / ACTIVE cases) willing to assign students to automatically notify this group in mass.

In lieu of a letter writing notification campaign aimed solely at inmates, all the public needs to do is - contact radio stations (South of Waco) allowing callers to shout out to inmates (in both languages) asking them to spread the word in conjunction with: local newspapers, TV stations, probation departments, parole offices, (including the bigwigs in Tyler). In less than 30 days it'll be on every single Unit & in every P. Officers In-box. In reality, everyone already knows about this and are simply waiting on someone to do the right thing vs. it simply being an In-House motto of the most corrupt DAs. office in the entire state.

Or, those with Law Degrees (or chasing one) wishing to become criminal defense lawyers should consider taking on this task. We know where the TDCAA is on this, but does anyone know where the defense lawyers association stands and what if anything have they done, as of today? *Any CDL embarking on this, in need of assistance is asked to let me know how I can assist you assist others?

Who is going to represent them is a phase II problem. First, they deserve to be notified. Some inmates may have financial resources to pay a defense attorney. Others have the time and brain power to write pretty good pro se writs (seriously, some of them are surprisingly good!). The remainder would be provided a list of pro bono resources to contact. I know that doesn't solve it because all of those orgs are overloaded. This would be a good project for ACLU, Amnesty Int'l, TDCAA, law school clinics, and/or the sections of local bar associations (criminal and appellate sections for starters). I am not a criminal law attorney, but if I got an email from my local bar association asking for pro bono volunteers I would definitely give some time to this cause.

TRG, IPOT's lawyers offered to try but when it came down to it did not have sufficient resources. It's a big job. That's why the talk of a public defender for forensic writs - this isn't something that can be handled via private charity work. The scale is too large.

@2:14, as a practical matter, notice won't matter in most cases unless there's a vehicle for representation. A few might get their own lawyers. A few might do a hand-written writ themselves. But you'll need institutional resources IMO to address something this big.

@Red, I don't know how many if any defendants had multiple cases, but Salvador tested evidence in 4,944 criminal cases total out of 36 different counties - most of them likely resulted in convictions but we don't know the percentage. Click on the Jonathan Salvador label at the bottom of this post and see past coverage for more detail on dry-labbing specifics.

Scores of pending criminal cases and past convictions could be in jeopardy in the wake of revelations that a former Houston Police crime lab technician resigned after an internal investigation found evidence of lying, improper procedure and tampering with an official record.

Former DNA lab technician Peter Lentz worked on 185 criminal cases, including 51 murders or capital murders, according to letters sent out by the Harris County District Attorney's Office and obtained by the Houston Chronicle through an open records request.

"It's a mess," said Gerald Bourque, an attorney who has several cases in which Lentz tested the DNA evidence, including two capital murder cases, one of which went to trial earlier this year. "If you're not following protocol, there's potential for contamination, transference, all kinds of stuff."

This is the latest in a series of problems to surface in recent months at HPD. A city-commissioned study showed the department failed to investigate 20,000 crimes with workable leads...

more at http://www.officer.com/news/11529935/scores-of-cases-affected-by-houston-lab-technician

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